Summilal Ahirwar Vs State Of U.P

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Judgment

291 paragraphs · 5,259 words

Ajay Bhanot, J

The instant appeal arises out of the judgement dated 09.11.2017 rendered by the learned Sessions Court in Sessions Trial No. 79 of 2016 State vs. Summilal registered as Case Crime No. 277 of 2016 under Section 302 IPC at P.S. Talbehat, District Lalitpur.

The learned trial court by the impugned judgement has found the appellant guilty of the offence under Section 302 I.P.C. and has imposed a punishment of life imprisonment along with a fine of Rs. 10,000/-, and further imprisonment of 1 year upon default of payment of fine.

Briefly put the prosecution case set out in the FIR dated 11.05.2006 is that Sangeeta, daughter-in-law of the first informant was having illicit relations with his nephew Summilal. A quarrel broke out on 10.05.2016 at about 10:30 pm between Summilal and Prabhu (Sangeeta's husband/first informant's son) over the aforesaid relationship. In course of the altercation Summilal fatally assaulted Prabhu with an axe who fell dead at the incident site. The deceased's body was lying in front of the house. On hearing the noise, the wife of the first informant Sallo and step son Rajjan saw and chased away the accused.

Pursuant to the FIR, police investigations ensued and a chargesheet was filed against the appellant under Section 302 I.P.C. on 11.05.2016. Cognizance of the offence was taken by the learned trial court on 17.08.2016.

Charge:

The learned trial court framed the following charge against the appellant on 28.09.2016.

The charge was framed and explained to the accused. After the accused pleaded not guilty the case went to trial.

Evidences:

Prosecution evidences adduced during trial are depicted in tabular charts below:

Oral Evidence:- List of prosecution witnesses

Prosecution Witnesses

No.

Witness No.

Witness

Nature of Witness

P.W.-1

Kashiram

First Informant

P.W.-2

Rajjan

Brother of Deceased

P.W.-3

Sallo

Mother of Deceased

P.W.-4

Constable Tek Singh

Head Moharrir

P.W.-5

Dr Rakesh Kumar

Doctor who conducted the postmortem

P.W.-6

S.I Krishna Bihari Misra

Inquest Report Officer

P.W. 7

SI Jitendra Singh

Investigating Officer

Documentary Evidences:

Written Report

P.W.-1 Kashiram

29.11.2016

Ex. Ka-1

Recovery Memo of blood stained Axe

P.W.-7 Inspector Jitendra Singh

05.08.2017

Ex. Ka-2

Recovery Memo of blood stained and plain soil

P.W.-7 Inspector Jitendra Singh

05.08.2017

Ex. Ka-3

Inquest Report

P.W.- 6 SI Krishna Bihari Mishra

24.07.2017

Ex. Ka-4

F.I.R

P.W.- 4 Constable 705 Tek Singh

20.12.2016

Ex. Ka-5

G.D Entry

P.W.-4 Constable 705 Tek Singh

05.08.2017

Ex. Ka-6

Postmortem Report

P.W.-5 Dr Rakesh Kumar

22.12.2016

Ex. Ka-7

Letter from P.W. 6 requesting Post Mortem

P.W.- 6 SI Krishna Bihari Mishra

24.07.2017

Ex. Ka-8

Letter to CMO for Post Mortem

P.W.- 6 SI Krishna Bihari Mishra

24.07.2017

Ex. Ka-9

10.

Photo Nash

P.W.- 6 SI Krishna Bihari Mishra

24.07.2017

Ex. Ka-10

11.

Police Challan- Form 13

P.W.- 6 SI Krishna Bihari Mishra

24.07.2017

Ex. Ka-11

12.

Sample Seal

P.W.- 6 SI Krishna Bihari Mishra

24.07.2017

Ex. Ka-12

13.

Site Plan

P.W.-7 Inspector Jitendra Singh

05.08.2017

Ex. Ka-13

14.

Description of all Proceedings (G.D.)

P.W.-7 Inspector Jitendra Singh

05.08.2017

Ex. Ka-14

15.

Charge Sheet

P.W.-7 Inspector Jitendra Singh

05.08.2017

Ex. Ka-15

16.

FSL Report

19.01.2017

Ex. Ka-16

Material Evidences:

Sr No.

Material

Exhibit

Blood Stained Soil sample

Material Exhibit- 1

Plain Soil sample

Material Exhibit- 2

Blood Stained Axe

Material Exhibit- 3

Pant of deceased

Material Exhibit- 4

T-shirt of deceased

Material Exhibit- 5

Underwear of deceased

Material Exhibit- 6

Amulet with thread

Material Exhibit- 7

Kalava (Sacred Thread)

Material Exhibit- 8

Chhalla (Ring)

Material Exhibit- 9

I. FIR:

The FIR records the date of incident was 10.05.2016 at about 2230 hrs. The information was received at the Police Station Talbehat, Lalitpur on 11.05.2016 at 0030 hours. Kashiram / P.W.1 the first informant testified that he had got the tehrir written down at home and submitted the same at Police Station, Talbehat, Lalitpur on 11.05.2026. The written report/tehrir bearing the thumb impression of P.W.1 was proved by him and marked as Exh Ka-1.

P.W.4-Constable 705 Tek Singh testified that he was on duty as head muharrir at P.S. Talbehat, when Kashiram (first informant) submitted a written tehrir at the police station. P.W.4 identified the tehrir which was marked as Exh.Ka 1. The P.W.4 further deposed that he had dictated the contents of the chik F.I.R. to Constable Devendra Singh who typed the same. The F.I.R. was signed by the Incharge of the Police Station and bore his seal. The P.W.4 proved the F.I.R. which was marked as Exh.Ka-5. P.W.4 also testified that pursuant to the receipt of tehrir an entry was made in the general diary as Kayami report no.002 at his dictation. The said GD entry was proved by him and marked as Exh. Ka-6.

Time, Place of Incident and Cause of Death:

a. Inquest Report

10.

The inquest report was drawn up by S.I. Krishna Bihari Mishra (P.W. 6) on 11.05.2016. The inquest report records that the incident was reported on 11.05.2016 at 00:30 hrs. The police party reached the site on 11.05.2016 at 01:15 hrs. The inquest proceedings were completed on 11.05.2016 at 9:30 a.m.

11.

The inquest report records that in the opinion of the panchas it appeared that the deceased had died of injuries inflicted by an axe.

12.

The panch witnesses to the inquest report included Rajjan /P.W. 2. The P.W.2 stated that he was a witness to the inquest proceedings and identified his signature on the inquest report whereupon the document was marked as Exh. Ka-4.

13.

P.W.7/IO-SI Jitendra Singh Chandel testified that the inquest proceedings were conducted by P.W.6 in his presence. P.W.6-S.I. Krishna Behari who had written down the inquest report also proved the document and its contents before the learned trial court which was Exh.Ka-4.

b. Recovery Memo:

14.

P.W.7 (S.I. Jitendra Singh Chandel ) has testified that he reached the site on 11.05.2026 and prepared the recovery memo after recovering the incriminating articles. The recovery memo records that the blood stained axe was recovered in front of the door of first informant's house, and was lying near the head of the deceased. The recovered axe was taken into police custody and stitch wrapped in a piece of cloth and sealed.

15.

Rajjan (P.W. 2) was the witness to the recovery memo and had fixed his signatures to the same. P.W.2 identified his signatures on the recovery memo and proved the same which was then marked as Exh. Ka-2. Exh. Ka-2 was also proved by its author P.W.7.

16.

P.W. 7/Investigation Officer on 11.05.2016 also drew samples of plain soil and blood stained soil from the site of the incident. The said soil samples were respectively packed in separate plastic boxes taken into police custody, stitch wrapped and sealed. P.W. 2 was also witness to the aforesaid recovery, who identified his signatures on the recovery memo and the document was marked as Exh. Ka3.

17.

The aforesaid recovery memos and their contents were proved by P.W. 7.

c. Site Plan:

18.

P.W. 7 in his testimony before the trial court stated that the site plan was prepared at the pointing out of the first informant/ P.W.1 on 11.05.2016 when he visited the site of the incident. Place of occurrence as per site plan is near the front door of the informant's house. The site plan indicates that the first informant Kashiram was seated at place B in the courtyard on a charpoy and saw the incident. At place C Rajjan was lying on a charpoy and was woken up by the commotion. Rajjan saw the incident from place C. At place A, Sallo, mother of the deceased lay in bed and woke up on hearing the noise and saw the incident. All the three places A, B, C are in the open courtyard.

19.

The route taken by the accused to flee the spot after the incident and upon throwing the axe near the body of the deceased has been marked in the aforesaid site plan.The site plan was proved by P.W.7/I.O. and marked as Exh.Ka13.

Medical Evidence/Postmortem report as evidence of the doctor (P.W. 5)

(i) PM report (ii) FSL report (iii) Medical Evidence

20.

The inquest report records that the body of the deceased was stitch wrapped in cloth and sealed. The body was made over to constable 332 Kunwar Lal and Head Constable 213 Ram Sevak who proceeded to the mortuary along with the relevant documentation for conduct of the postmortem.

21.

The postmortem was conducted on 11.05.2016 commenced at 4: 35 PM by Dr. Rakesh Kumar/P.W.5. The postmortem proceedings were concluded at 5:45 p.m.

22.

The following antemortem injuries are recorded in the postmortem report:

"Injury No.1- Lacerated wound 16 cm x 3 cm on the backside of the neck bone deep. Clotted blood was present on the wound. The internal structures of the neck, specifically the trachea and the larynx along with the oesophagus were severed. Additionally, there was a fracture in the skull. Three cervical vertebrae were broken.

Injury No.2 : A stab wound located on the neck measuring 4cm x 4 cm which was also bone deep and reached injury no. 1, and the open surface of the wound was 4 cm x 4 cm.

Injury No.3 : Incised wounds were present on the back, measuring 7.00 cm x 0.50 cm, 10.00 cm x 0.50 cm, 12.00 cm x 0.50 cm, and 5.00 cm x 0.50 cm; these wounds extended deep into the muscle.

Injury No.4 : An incised wound was present in the right side of the abdomen measuring 4.00 cm x 0.50 cm extending deep into the muscles."

23.

The postmortem report opines that the cause of death is as under:

"Shock and hemorrhage due to antemortem injuries".

24.

According to the postmortem report time of death was:

"Time since death about one day."

25.

P.W. 5 Dr. Rakesh Kumar proved the postmortem report which was marked as Exh Ka-7 Under cross examination P.W.-5 stated that injuries no. 1, 2 and 3 were caused by sharp edged weapon. However, injury no. 2 was a punctured wound and could have been inflicted by a pointed object such as the heel of an axe blade.

FSL Report:

26.

The P.W. 7 in his testimony stated that the clothes of the deceased, the samples of plain earth and blood stained soil as well as the blood stained axe were sent to the F.S.L. for examination.

27.

The F.S.L. report dated 19.01.2017 was sent by the Joint Director, Forensic Science Laboratory, Agra. The FSL report opines that human blood was found on the t-shirt, trousers as well as the blood stained samples of earth and the axe. The F.S.L. report was marked as Exh. Ka -16 after the deposition of P.W. 7.

Material Exhibits

28.

Various collected articles from the site including the blood stained axe, blood stained soil sample, plain soil sample and personal effects of the deceased were produced during the trial court and proved by P.W.7-Investigating Officer. The collected articles were marked as exhibits in the following manner:

Sample of bloodstained soil- Material Exhibit-1

Sample of plain soil- Material Exhibit-2

Bloodstained Axe- Material Exhibit-3

Pant of the deceased- Material Exhibit-4

T-shirt of the deceased- Material Exhibit-5

Underwear of the deceased- Material Exhibit-6

Amulet with thread- Material Exhibit-7

Kalava (Sacred thread)- Material Exhibit-8

Challa (Ring) - Material Exhibit-9

Oral Testimonies

P.W. 1 Kashiram - first informant

29.

P.W. 1 Kashiram the deceased's father and first informant deposed as P.W. 1. P.W. 1 in his testimony before the trial court stated that Prabhu (deceased) and Summilal(accused) started arguing over the latter's affair with Sangeeta (wife of the deceased). Hot words were being exchanged between Prabhu and Summilal, when Summilal inflicted repeated axe blows on Prabhu. Prabhu fell to his death instantly. P.W. 1 has also stated that the accused used to handover his earnings to the wife of Prabhu. During the trial P.W.1 identified the accused as Summilal who had killed the deceased by attacking him with an axe.

P.W. 2 Rajjan - step brother of the deceased

30.

Rajjan, the step brother of the deceased was introduced as P.W. 2. P.W. 2 in his deposition stated that the incident occurred on 10.05.2016 at about 9 to 9:30 p.m. P.W. 2 was in his house at the time of the incident. An altercation broke out between the deceased Prabhu and his wife with the accused Summilal. Prabhu asked his wife not to give rotis to Summilal and refuse him entry into their house. P.W.2 went to their house and after separating the parties stood at a distance of about 10 paces. Summilal inflicted 3 or 4 axe blows on Prabhu's neck and body.

31.

P.W.2 Rajjan thereafter testified that he and 5 to 6 other persons overpowered Summilal and tied him to a tree. His father went and informed the police. When the police arrived they arrested Summilal and also recovered the bloodstained axe from a spot near his place of arrest.

P.W.3-Smt. Sallo

32 . Smt. Sallo-mother of the deceased entered the witness box as P.W.3 in her testimony before the learned trial court.

P.W. 3 stated that the incident occurred about 7 months ago.

P.W.3 stated that at about 10 P.M. she was sitting in her house with her husband (P.W.1) and son Rajjan (P.W.2). Prabhu was in his house which is adjacent to hers. Prabhu was telling his wife not to give food to Summilal nor permit him to enter their house. On hearing Prabhu's voice she rushed to the site and witnessed the killing. Summilal attacked Prabhu with an axe. Prabhu dropped dead at the site. P.W.3 identified the accused in court.

33.

According to P.W.3 Summilal was overpowered by her son Rajjan (P.W.2) and other persons along with the axe at the spot. Summilal was then tied to a Munga tree, and the axe was in his possession. After receiving information from her husband, the police authorities came to the site and arrested Summilal with the axe.

P.W.7-Jitendra Singh Chandel

34.

The investigation officer was introduced by the prosecution as P.W.7. P.W.7 in his testimony described the process of investigation after receipt of the tehrir on 11.05.2016 at about 0030 hours.

35.

P.W. 7 deposed before the learned trial court that he recorded the statement of the witnesses of the panchayatnama and the eye witness Rajjan on 09.06.2016.

Submissions from the Bar:

Arguments on behalf of appellant

36.

Shri N.I. Jafri, learned Senior Counsel/Amicus Curiae, assisted by Sri Ali Jamal Khan, learned Amicus Curiae have canvassed the following submissions in favour of the appellant as under:

I. There are material contradictions in the F.I.R. and testimony of P.W.1.

II. There are major inconsistencies in the statements of the eye witnesses as well as other prosecution evidences in the record. The eye witnesses are unreliable and their testimonies are liable to be disbelieved. The presence of the P.W.-1, P.W.-2 and P.W.-3 at the site when the incident occurred is doubtful.

III. The prosecution failed to establish the presence of the appellant at the site of the incident and his arrest in the manner deposed to by P.W.1, P.W.2 and P.W.3. Inquest report, recovery memo and the arrest memo contradict the testimonies of P.W. 1 P.W 2 ,P.W. 3, and P.W.7 regarding arrest of the accused and recovery of the axe.

IV. Post mortem report and medical evidence disclose that all injuries were not caused by axe.

V. The appellant has been falsely implicated only to usurp his property.

VI. The delay in recording the statement of the eye witnesses particularly P.W.-2 who was present at the time of the inquest report as well as recovery memo supports the conclusion that the appellant was falsely framed in the instant case.

VII. The prosecution failed to establish the case against the appellant beyond reasonable doubt.

Arguments on behalf of State

37.

Shri Paritosh Kumar Malviya, learned A.G.A-I and Shri Rishi Chaddha, AGA have vehemently opposed the submissions of learned Senior Counsel and have made following submissions:

I. This is a case of direct evidence and all prosecution witnesses gave consistent testimonies and remained unshaken during the cross-examination.

II. The ocular testimonies of the prosecution witnesses finds further corroboration in the post mortem report.

III. Material evidences like recovery of the dead body, recovery of weapon of assault, bloodstained soil establish the place of incident. Arrest of the appellant from the site also supports the prosecution case.

IV. The FSL report opines that human blood sample were found on the clothes of the accused corroborated the prosecution case.

V. The prosecution has proved the guilt of the appellant beyond reasonable doubt.

VI. The accused cannot be given the benefit of lapses in the investigation.

Appraisal of evidences:

I. FIR:

38.

Recitals in the FIR and submission of tehrir, GD entry and other documentary evidences including the postmortem report does not disclose any inordinate delay in lodgement of the FIR. However, the veracity of the prosecution case set out in the F.I.R. can only be determined upon further appraisal of evidences in the record.

II. Place of Recoveries :

39.

The body of the deceased was recovered from the place which is close to the house of the first informant. The blood stained axe was lying near the body of the deceased from where it was recovered.

Prosecution version of the incident and complicity of the accused:

Motive:

40.

As per recitals in the FIR and testimony of P.W. 1 the cause for dispute between the deceased Prabhu and Summilal was illicit relations of the accused Summilal with Sangeeta (wife of the former). However, under cross examination P.W.1 stated that in the past there was no incident of quarrel between the accused and the deceased. Though Prabhu discouraged his wife from giving rotis to the accused Summilal. Summilal resided with Prabhu and his wife.

41.

P.W. 2 Rajjan who is the stepson of P.W. 1 did not make any statement regarding illicit relations between the accused Summilal and Sangeeta. On the contrary he stated that Summilal and Prabhu resided separately and Summilal had his independent source of living and ran a separate kitchen. Summilal stayed separately from Kashiram as well.

42.

P.W. 3 who is the mother of the deceased categorically testified that Summilal and wife of the deceased did not have any illicit relations. Further, P.W. 2 resided separately and independently managed their affairs.

43.

The motive for commission of the offence as brought out by the P.W. 1 has been contradicted by P.W. 2 and P.W.

The said contradiction assumes significance inasmuch as three witnesses belong to one family and are also related to the accused appellant.

44.

Under cross-examination P.W.2 stated that sometime back the accused had assaulted the deceased. However, no FIR was registered. The immediate cause of the fatal assault as per the three witnesses was an altercation which is distinct from the deep seated motive alleged by P.W. 1.

45.

In this wake pre-existing motive on account of illicit relationship between the wife of the deceased and the accused-appellant is not worthy of belief.

Delay in recording the statement of P.W.2

46.

The statement of PW-2 was recorded by the investigating officer on 09.06.2016 There was no justifiable reason for failure to record the statement of P.W.2 on a timely basis. P.W.2 was present when P.W.6 and police party had arrived at the site on 11.05.2016 after the tehrir was received at the police station. P.W.2 was witness to inquest report and the recovery memo which were drawn up on 11.05.2016. The admitted delay on part of P.W.6 in recording the statement of P.W.2 also makes the prosecution case questionable. The discussion can profit from authorities in point.

47.

The Supreme Court in Shahid Khan v. State of Rajasthan [(2016) 4 SCC 96] while considering the effect of unexplained delay in recording the statement of a material witness by the Investigating Officer held as under:

"20. The statements of PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir were recorded after 3 days of the occurrence. No explanation is forthcoming as to why they were not examined for 3 days. It is also not known as to how the police came to know that these witnesses saw the occurrence. The delay in recording the statements casts a serious doubt about their being eyewitnesses to the occurrence. It may suggest that the investigating officer was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced. The circumstances in this case lend such significance to this delay. PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir, in view of their unexplained silence and delayed statement to the police, do not appear to us to be wholly reliable witnesses. There is no corroboration of their evidence from any other independent source either. We find it rather unsafe to rely upon their evidence only to uphold the conviction and sentence of the appellants. The High Court has failed to advert to the contentions raised by the appellants and reappreciate the evidence thereby resulting in miscarriage of justice. In our opinion, the case against the appellants has not been proved beyond reasonable doubt."

Presence of witnesses and accused at the time of the incident:

48.

The second question which arises for consideration is the location of the houses of P.W. 1, P.W. 2, P.W. 3, accused and the deceased and whether the eye witnesses were present at the site of the incident when it occurred.

49.

The location of houses of the parties are depicted in the site plan. P.W. 1 and P.W. 3 reside in the same house P.W. 2, the deceased and the accused resided separately in their respective houses . There is an open courtyard near the houses.

50.

P.W. 1 in his testimony has stated that he and Prabhu stayed separately. Summilal resided with Prabhu. P.W. 1 deposed that at the time of the incident, he and his son Prabhu were in their respective houses. In his testimony P.W. 1 has not stated that he had seen the incident, nor mentioned about the presence of P.W. 3.

51.

P.W. 2 claims that he was in his house when the incident occurred. He reached the site only upon hearing the altercation between the accused and the deceased.

52.

P.W. 3 has stated that she, P.W. 1 and P.W. 2 were together in her house. Prabhu was in his house. She had seen the incident. There is no source of light in her house. The incident occurred in the night. Under cross-examination P.W. 3 stated that she was lying on a cot when the incident occurred and rushed to the site on hearing Prabhu's voice and saw the incident.

53.

The site plan on the contrary shows that all the three witnesses were sitting in the open courtyard and not in their respective houses. As per the site plan all the three witnesses had a clear uninterrupted view to the site of the incident. However, from the site plan it is equally evident that no one could see the incident sitting in their houses.

54.

There are major variations in the site plan and testimonies of P.W.-1, P.W.-2 and P.W.-3 with respect to the houses of the parties and the places from where the said witnesses saw the incident.

55.

Furthermore the depositions of P.W. 1, P.W. 2 and P.W. 3 in respect to the place where the respective witnesses were present at the time of incident and the manner in which they had witnessed the incident are also mutually contradictory.

56.

The witnesses were aware of the difference between a courtyard and house.

57.

In view of the aforesaid inconsistencies the presence of the witnesses at the site of the incident and their claims to have witnessed the incident are seriously in doubt.

Presence of accused at the site when the incident occurred, arrest of accused, presence of eyewitness, recovery of axe and credibility:

58.

The prosecution story stated in the FIR is that the accused inflicted fatal blows to the deceased. On hearing the commotion Sallo and the step son of the first informant

P.W. 2 saw and chased away the accused.

59.

The version of the FIR is contradicted in the testimony of the first informant. Under cross examination P.W.1 had stated that when the police reached the spot Summilal was lying tied up (bound down by rope/cloth) in the house and was trying to hang himself. The police untied Summilal. The axe was in the possession of Summilal and was recovered by the police from him.

60.

The version of P.W.2 in respect of the immediate aftermath of the incident is also at sharp variance with the testimony of P.W.1.

61.

According to the testimony of P.W.2 as seen earlier, after the incident the accused was overpowered by him along with five to six persons and tied to a tree. The accused was arrested with the axe at the site of the incident by the police. Under cross-examination, P.W.2 elaborated that he along with others had tied the accused to a tree. The police on their arrival untied the accused and arrested him. The weapon of assault was recovered from a point two feet away from the accused.

62.

P.W.3 testified that Summilal was overpowered by Rajjan/P.W.-2 and others at the site of the incident, and tied up along with the axe to a Munga tree. The tree is in the courtyard of her house. When the police arrived at the spot they untied the accused from the tree and took him into the custody. When the police arrested Summilal the axe was with him.

63.

The version of the arrest of the accused and recovery of axe from him as brought out in the testimonies of P.W. 1,

P.W. 2 and P.W. 3 is squarely contradicted in the deposition of P.W.7/IO who had effected the arrest of the accused.

P.W 7 under cross-examination stated that the accused was arrested from his doorstep, after a tip off was received from an informer. The arrest memo which is registered as Paper no. Ka-1 records that the accused was arrested on 11.05.2016 at 1400 hours from the front of his house.

64.

Investigative processes like inquest and recovery commenced at the site on 11.05.2016 at 9:30 a.m. The recovery memo and the inquest report do not record the presence of the accused. P.W. 2 was witness to inquest report and recovery memo. At the time the said documents were drawn up, he did not inform the IO/P.W. 7 and P.W. 6 about the presence of the accused at the site. The recovery memo also does not state that the axe was recovered from the accused as was deposed by P.W. 1, P.W.2 and P.W.3. The Investigating Officer/P.W. 7 in his testimony has not stated that the axe was recovered from the accused or was lying near him when he was arrested. P.W. 7 stated that the axe was near the head of the dead body at the time of recovery. P.W. 7 was silent on the presence of accused at the time of recovery of the axe.

65.

The aforesaid contradictions in the prosecution case set out in the F.I.R., testimonies of P.W.1, P.W.2, P.W3, testimony of P.W.7 and other documentary evidences tendered by the prosecution are grave and irreconcilable. The presence of P.W.1, and P.W.3 at the time of the incident is doubtful. The claims of P.W.2 and P.W.3 of having witnessed the incident are not worthy of belief. Due to aforesaid inconsistencies in testimonies the credit of P.W.1, P.W2, and P.W.3 has been successfully impeached. The testimonies of P.W. 1, P.W. 2 and P.W. 3 insofar as they implicate the appellant are disbelieved. The testimonies of P.W. 1, P.W. 2 and P.W. 3 are accordingly discarded.

Section 313 Cr.P.C.: Proceedings

66.

The accused was alerted to various incriminating evidences which emerged against him during the trial. The accused in his defence in the aforesaid proceedings stated that he was falsely framed as the first informant and his party wanted to usurp his share of the property.

67.

Prosecution evidence in the record establishes that the accused was the nephew of P.W.1 and P.W.3. The accused is sole heir to the property which has devolved upon him by inheritance from his father. P.W.1, P.W.2, and P.W.3 have admitted their relationship with the accused and have consistently testified that the accused was unmarried and does not have any legal heirs.

Trial Court Judgment

68.

The learned trial court in the impugned judgment, while convicting the appellant found P.W. 1, P.W. 2, and P.W. 3 to be reliable eyewitnesses. After upholding the implicatory testimonies of given by P.W.1, P.W. 2, and P.W. 3 learned trial court found them consistent with the various other prosecution evidences, including the post-mortem report, recovery memo, inquest report, and FSL report. On these footings, the learned trial court found the accused guilty of the offence under 302 IPC.

69.

For the reasons stated in the preceding narrative, the learned trial court erred in law by not impeaching the credit of P.W.1, P.W. 2, and P.W. 3. The judgment rendered by the learned trial court is liable to be set aside and is set aside.

Conclusions:

70.

In light of the preceding discussion, the prosecution has not been able to prove the charges against the appellant under Section 302 I.P.C. beyond reasonable doubt. The accused is liable to be acquitted and is acquitted of the charges framed against him by the learned trial court.

71.

The Jail Appeal is allowed.

72.

The appellant shall be forthwith released from prison and set forth at liberty unless required in any other criminal case.

73.

The Court would like to accord its deep appreciation for the scholarly assistance rendered by Shri N.I. Jafri, learned Senior Counsel/Amicus Curiae assisted by Shri Ali Jamal Khan, learned Amicus Curiae for the appellant.

74.

A copy of this judgement translated in Hindi to be communicated to the appellant by the Secretary, District Legal Services Authority.

Summilal Ahirwar vs State Of U.P

Judgment